DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO
Civil Action No. 92CV5546 Courtroom 18
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ORDER AND JUDGMENT
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THOMAS C. MILLER and R.W. PETERSON, Plaintiff(s),
VS.
JAMES R. COLLIER, Denver Chief of Police, DETECTIVE WILLIAM
PHILLIPS, and THE CITY AND COUNTY OF DENVER,
Defendant(s).
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Plaintiffs are private investigators who sought to obtain
concealed weapons permits from defendants. Defendants denied each
of the plaintiffs a permit. Plaintiffs seek action from the court
regarding the permits, as well as unspecified damages.
Defendants have moved to dismiss plaintiffs' claim pursuant to
C.R.C.P. 12(b) for failure to allege or establish jurisdiction and
for failure to state a claim upon which relief can be granted.
I.
Plaintiffs allege that the defendants have failed to act by
failing or refusing to allow the plaintiffs to apply for or renew
concealed weapon permits. Plaintiffs contend that defendants have
abused their discretion and exceeded their jurisdiction in
determining who will be granted a concealed weapon permit.
Plaintiffs argue that their allegations fall within C.R.C.P.
106 and that jurisdiction can be grounded in either section (a)(2)
or (a)(4).
[new page]
A.
C.R.C.P. 106(a)(2) provides that relief may be obtained in the
district court:
where the relief sought is to compel a lower judicial body,
governmental body, corporation, board, officer or person to
perform an act which the law specially enjoins as a duty
resulting from an office, trust, or station, or to compel the
admission of a party to the use and enjoyment of a right or
office to which he is entitled, and from which he is
unlawfully precluded by such lower judicial body, governmental
body, corporation, board, officer, or person. The judgment
shall include any damages sustained;
The relief afforded by (a)(2) is in the nature of mandamus. An
action compelling an officer to act will lie only when that officer
fails to perform an official duty, Where there is no duty to act,
an action in the nature of mandamus cannot be sustained. People v.
ex rel. Garrison v. Lamm, 622 P.2d 87 (Colo. App. 1980); Vigil v.
Industrial Comm'n, 413 P.2d 904 (Colo. 1966)(Section (a)(2) permits
the granting of relief to compel an "inferior tribunal,
corporation, board, officer or person" to perform some required
duty or act); Potter v. Anderson, 392 P.2d 650 (1964)(mandamus may
be used to compel the performance by a public officer of a plain
legal duty devolving upon him by virtue of his office).
In the present case, section 31-4-112.1, 12B C.R.S. (1980
Repl. Vol.), states: "The chief of police of a city or city and
county may issue written permits to carry concealed weapons. Any
such permit shall be issued in accordance with section 18-12-105.1,
C.R.S." Section 18-12-105.1, C.R.S., provides in relevant part:
(1) Pursuant to the grant of authority in sections 30-10-523
and 31-4-112.1, C.R.S. the chief of police of a city or of a
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city and county or the sheriff of a county may issue written
permits to carry concealed weapons...
(2) A sheriff or chief of police shall make an inquiry into
the background of an applicant for a permit to carry a
concealed weapon to determine if the applicant would present
a danger to others or to himself if he is granted a permit.
These sections do not, under any circumstances, require the
chief of police to issue written permits to carry concealed
weapons. Nor do the statutes establish criteria which, if met,
require the issuance of concealed weapon permits. Rather, the
statutes grant the police chief authority to issue such permits.
The police chief is not under a legal duty to issue concealed
weapon permits to anyone. [footnote 1]
There is a three-part test which must be satisfied by a
plaintiff before mandamus will be issued by the court: (1) the
plaintiff must have a clear right to the relief sought; (2) the
defendant must have a clear duty to perform the act requested, and
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1. The plaintiffs also cite section 38-116.5 of the Denver
Municipal Code (1983) in support of their argument that plaintiffs
have a statutory right to carry a concealed weapon. This section
provides in pertinent part:
(a) The chief of police is authorized to issue permits to
persons for the carrying of concealed weapons, such permits
conditioned upon reasonable terms for the protection of life
and property.
(b) The chief of police shall promulgate rules and regulations
to implement the issuance of concealed weapons permit,
providing for, among other things, a background check of each
applicant, a determination of the need of each applicant to be
issued a concealed weapons permit, and a determination of the
proficiency of each applicant in the care and use of any
weapon applicant may carry.
Again, the language in the Municipal Code clearly indicates that
while the chief of police is authorized to issue concealed weapons
permits, he is under no legal obligation to do so.
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(3) there must be no other available remedy. Gramiger v. Crowley,
660 P.2d 1279 (Colo. 1983). Plaintiffs have failed to meet this
test and are not entitled to the remedy of mandamus. Plaintiffs can
neither show a clear right to this relief, nor that defendant has
a clear duty to perform the act requested. Moreover, plaintiffs
have an alternative remedy in the form of damages.
B.
C.R.C.P. 106(a)(4) provides that relief may be obtained in the
district court:
where any governmental body or officer of any lower judicial
body exercising judicial or quasi-judicial functions has
exceeded its jurisdiction or abused its discretion, and there
is no plain, speedy and adequate remedy otherwise provided by
law...
Under this section, relief is available only upon exercise of a
"judicial or quasi-judicial" function. Hoffman v. City of Fort
Collins, 489 P.2d 355 (Colo. 1971). A quasi-judicial action
generally involves a determination of rights, duties or obligations
of specific individuals by applying legal standards or policy
considerations to facts developed at a hearing conducted for the
purpose of resolving interests in question. State Farm v. City of
Lakewood, 788 P.2d 808 (Colo. 1990).
Since the actions alleged here are executive in nature, rather
judicial or quasi-judicial, plaintiffs cannot ground than
jurisdiction in (a)(4).
II.
Plaintiffs make no reference to any other statute or court
rule establishing the jurisdiction or legal authority of this court
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to grant the relief they have requested. Therefore, all that
remains is plaintiffs' request for damages for defendants' alleged
violation of both the Colorado Constitution and plaintiffs' civil
rights under 42 U.S.C. 1983. [footnote 2]
Plaintiffs cite Kellog et. al. v. city of Gary et. al., 562 N.
E.2d 685 (Ind. 1990), in support of their position that defendants
are violating the plaintiffs civil rights under 1983. However, this
case holds that there is no liberty or property interest in bearing
handguns which stems from the Second Amendment to the U.S.
Constitution. Id. at 694. Likewise, Art. II, section 13 of the
Colorado Constitution does not create a liberty or property
interest in bearing concealed weapons. That section states:
The right of no person to keep and bear arms in defense of his
home, person and property or in aid of the civil power when
thereto legally summoned, shall be called in question; but
nothing herein contained shall be construed to justify the
practice of carrying concealed weapons.
Furthermore, in People v. Garcia, 595 P.2d 228 (Colo. 1979), the
court held that the right to bear arms is not absolute, as it can
be restricted by the state's valid exercise of its police power.
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2. 42 U.S.C. 1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory o the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress.
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In Kellog, the state of Indiana exercised its police power by
promulgating the Indiana Firearms Act which states: " the
superintendent of state police shall issue to the applicant a
license, if..." Kellog, 567 N.E.2d at 695. (emphasis added) In that
case, the defendant refused to distribute blank handgun
applications to any of its citizens. The court found that "without
access to the application process, the citizens underlying
substantive right to carry a handgun with a license (provided that
all requirements of the Indiana Firearms Act are met), was cut
off..." Id. at 696.
In the present case, the state of Colorado exercised its
police power by passing a statute which states: "The chief of
police...may issue written permits to carry concealed weapons."
(emphasis added) The Colorado statute clearly vests the chief of
police with discretion in reviewing application forms, whereas the
Indiana statute does not. Accordingly, neither the U.S.
Constitution, the Colorado Constitution, nor state statutory law
grants an individual a liberty or property interest in carrying a
concealed weapon.
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III.
Defendants motion to dismiss is granted as plaintiffs have
failed to establish the court's jurisdiction to award them the
mandamus and certiorari remedies requested. As far as plaintiffs'
claims for damages resulting from alleged state and federal
constitutional violations are concerned, plaintiffs have failed to
state a claim upon which relief can be granted. Neither the state
constitution, the federal constitution nor the relevant statutes
grant plaintiffs a protected right to carry a concealed weapon.
This case is dismissed with prejudice.
Dated this 5th day of November, 1992.
BY THE COURT
[signed]
Warren O. Martin
District Court Judge.
xc: Frank X. Dwyer
James C. Thomas
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